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Chapter 43 of title 5, United States Code, provides for performance management for the Senior Executive Service (SES), the establishment of SES performance appraisal systems, and appraisal of senior executive performance. Agencies establish performance management systems that hold senior executives accountable for their individual and organizational performance in order to improve the overall performance of Government by:
Agencies develop performance management systems subject to OPM regulations and approval.
The supervisor establishes performance elements and requirements in consultation with the executive and consistent with the goals and performance expectations in the agency's strategic planning initiatives. The supervisor proposes the initial summary rating, based on both individual and organizational performance, and taking into account customer satisfaction and employee perspective.
The executive's initial summary rating is reviewed by a Performance Review Board (PRB). The agency head (or his/her designee) determines the executive's annual summary rating.
Agencies develop performance management systems subject to OPM regulations and approval. Agency systems must contain 3 rating levels: fully successful, minimally satisfactory, and unsatisfactory.
Career SES appointees and certain limited appointees may be suspended for disciplinary reasons, defined as "misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function." Statute states that suspensions must be for more than 14 days. However, an agency may issue a reprimand or admonishment for offenses that do not warrant a suspension. In most cases, the executive must receive 30 days advance notice of a proposed suspension, has the right to reply, and the right to appeal to the Merit Systems Protection Board (MSPB).
The law does not specify procedural requirements for noncareer, most limited term appointees, limited emergency appointees, and reemployed annuitants. Thus, such appointees may be suspended under established agency procedures. Appointees under these circumstances do not have appeal rights to MSPB.
If a career executive is removed during the probationary period for performance reasons, he/she is entitled to placement in a GS-15 position with saved pay (unless appointed to the SES from outside Government or from a noncareer-type appointment). After the probationary period, the executive must be placed in another position within the SES or removed from the SES for one unsatisfactory rating. An executive must be removed from the SES for two unsatisfactory ratings in 5 years, or for two less than fully successful ratings in 3 years. The executive may request an informal hearing before MSPB and is entitled to placement in a GS-15 position with retained pay. No career executive can be removed for performance reasons during 120 days after appointment of a new agency head or new noncareer supervisor with removal authority, except removals based on a rating(s) prior to appointment.
Reduction-in-force (RIF) retention determinations are based primarily on performance. The agency must place an executive who has completed a probationary period in any SES vacancy for which he/she is qualified. If no vacancy exists, OPM has 45 days to try to place the executive elsewhere in the Government. If the executive cannot be placed in the SES, he/she is entitled to placement in the agency at a GS-15 position with saved pay, and has appeal rights to MSPB on agency compliance with competitive RIF procedures.
In lieu of placement in a GS-15 position, the executive may elect discontinued service retirement with 25 years service or 20 years of service at age 50.
Disciplinary removal procedures and rights are similar to those for competitive service employees, except that the standard for action is "misconduct, neglect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function." The executive must receive 30 days notice of a proposed removal, has the right to reply, and may appeal to MSPB, but has no placement right to a GS-15 position.
Removal is at the discretion of the agency head. The law does not specify procedural requirements for noncareer, most limited term appointees, limited emergency appointees, and reemployed annuitants. Thus, such appointees may be removed under established agency procedures. Appointees under these circumstances do not have appeal rights to MSPB. Some executives on limited term appointments have placement rights.